ALBANY, N.Y. (May 12, 2022) – Earlier this week, a New York Assembly committee held a hearing on a bill that would create a process to sue police officers and government officials in state court for the deprivation of individual rights without the possibility of “qualified immunity” as a defense.

Assm. Michael Lawler (R) and two fellow Republicans introduced Assembly Bill 8130 (A8130) last year and it carried over to the 2022 legislative session. Under the proposed law, “An elected public official acting under color of law who subjects or causes to be subjected any other person to the deprivation of any rights, privileges, or immunities secured by the federal or state Constitution or laws, is liable to the injured party for legal or equitable relief or any other appropriate relief.”

The legislation stipulates that “it shall not be a defense or immunity to any action that an elected public officer was acting in good faith, or that such public officer believed, reasonably or otherwise, that their conduct was lawful at the time when it was committed. Nor shall it be a defense or immunity that the rights, privileges, or immunities secured by the federal or state Constitution or laws were not clearly established at the time of their deprivation or interference or attempted interference by the defendant, or that the state of the law was otherwise such that the public officer could not reasonably have been expected to know whether their conduct was lawful.”

In effect, the passage of A8130 would create an alternative path to address violations of rights in state court with no qualified immunity hurdle to clear. A similar law was recently passed in Colorado.

On May 9, the Assembly Government Operations Committee held a hearing on A8130. They voted to hold the measure for further consideration. This means they can bring the bill up for a vote at any time, but there is likely some reticence in passing the bill as it stands.

A8130 is one of several bills introduced in the New York legislature to address qualified immunity.

In Practice

It remains unclear how the state legal process would play out in practice.

The first question is whether people will actually utilize the state courts instead of the federal process. Under the original constitutional system, it would have never been a federal issue to begin with. Regulation of police powers was clearly delegated to the states, not the federal government. But with the advent of the incorporation doctrine, people reflexively run to federal courts. But by removing the qualified immunity hurdle, it should incentivize people to take advantage of the state system.

The second question is if police officers will be able to transfer cases to federal jurisdiction in order to take advantage of qualified immunity.

A8130 could open that door. These proposed laws would allow people to sue in state court for violations of the state or federal Constitution. All matters regarding the U.S. Constitution or federal law will be remanded to federal courts. To avoid this, plaintiffs would have to sue based solely on the New York State Constitution and its bill of rights. The only way to avoid federal jurisdiction and ensure federal qualified immunity doesn’t come into play would be to limit the suit to state constitutional issues.

A8130 does not only create a cause of action for violations of the state constitution. It would be much harder for attorneys to move cases under this proposed law to federal court.

Even if the suit is focused on state law and the New York constitution, state and local law enforcement officers working on joint state/federal task forces would almost certainly be able to move the case to federal court. They are effectively treated as federal agents.

One attorney told the Tenth Amendment Center that it might be possible for officers to have their case removed to federal court to consider U.S. constitutional ramifications. But he said even then, he thinks federal courts would have to respect the state law prohibiting qualified immunity as a defense. The federal court would likely have to apply the state law as the state intended, even though the federal court might well be able to decide whether or not a U.S. constitutional violation had taken place.

Other lawyers we talked to said it wasn’t clear to them that the federal courts would have to honor the state statute. It is possible that the federal court could simply decide its jurisdiction supersedes state law and hear the case under the federal process, including the application of qualified immunity. Only time will tell how the process will play out in practice. Regardless, the state process will make it more difficult for police to simply side-step civil suits by declaring sovereign immunity upfront.

Moving Forward 

The Supreme Court shows no interest in rolling back its qualified immunity doctrine. In fact, the High Court recently rejected several cases that would have allowed it to revisit the issue. For instance, the SCOTUS let stand an Eleventh Circuit decision granting immunity to a police officer who shot a ten-year-old child in the back of the knee, while repeatedly attempting to shoot a pet dog that wasn’t threatening anyone.

Congress could prohibit qualified immunity. A bill sponsored by Rep. Justin Amash (L-Mich.) and  Ayanna Pressley (D-Mass.) during the last Congress would have done just that, but it was never taken up. Congress does not have a good track recorded on reining in government power.

The best path forward is to bypass the federal system as Colorado has already done.

Other states should follow their lead and create state processes to hold their police officers accountable. With the evolution of qualified immunity, the federal process is an abject failure. As Supreme Court Justice Byron White wrote in the 1986 case Malley v. Briggs, qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Reuters called it “a highly effective shield in thousands of lawsuits seeking to hold cops accountable for using excessive force.”

Attorney and activist Dave Roland called on Missouri to adopt a similar process in an op-ed published by the St. Louis Post-Dispatch.

A consensus has developed — crossing all party and ideological lines — for the proposition that qualified immunity is an evil that should be undone. At the federal level either the Supreme Court or Congress could undo it, but thus far neither has seen fit to act. Justice in Missouri, however, does not need to wait on Washington — the Legislature can and should adopt a Missouri statute that allows citizens to sue government officials who have violated citizens’ constitutional rights.

WHAT’S NEXT

A8130 must be brought up for a vote and passed by a majority in the Assembly Government Operations Committee before moving forward in the legislative process.

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